Thomas Brennan

The House Ways and Means Committee lawsuit, in its quest for President Donald Trump’s tax returns, sets in motion a legal battle that may not be resolved before the 2020 presidential election. Courts will be asked to decide not just whether the panel’s request for six years of Trump’s personal and business returns is legitimate, but also whether Congress can sue the executive branch. How quickly it all happens will likely depend on the judge assigned to the case, according to tax practitioners and professors. The issue could eventually reach the U.S. Supreme Court...A second question has to do with the specific request for the tax returns. While Section 6103(f) doesn’t require the committee to explain the reasoning for its request to Treasury, some say a court may still ask for one. “Supreme Court precedent could be interpreted as requiring Congress to have a satisfactory motivation for the request,” said Harvard Law School professor Thomas J. Brennan. “So there’s debate to be had about what sort of rationale is needed.”...The courts may also decide that they can’t rule on the dispute because it involves a “political question,” a term that has special legal meaning. “There are some questions the Supreme Court has said have to be resolved by the political process rather than by the judiciary,” said Howard E. Abrams, who is a visiting law professor at Harvard Law School. The technical term the court would use is that the case is “nonjusticiable.”

University President Lawrence S. Bacow recently met with a U.S. Treasury Department official as the government prepares final regulations for taxing university endowments, Bacow said in an interview last month...The process of publishing final regulations around a law may take months or years, with plenty of feedback from those impacted, according to Harvard Law School Professor Thomas J. Brennan. “Taxpayers will often try to provide feedback on how they think the law might best be crafted, and how it may best work,” Brennan said. “There’s a whole long process with lots of input from lots of private parties.”

Gov. Andrew Cuomo’s plan to sue the federal government over the recently enacted tax bill on grounds that it violates constitutional principles will face significant challenges, legal experts say...Thomas Brennan, a tax professor at Harvard Law School, said Cuomo’s plan to sue the federal government over the tax plan would be “difficult.” “My own thought is it would be a challenging thing to challenge this law on constitutionality, at least the SALT (state and local taxes) restriction,” Brennan said of the proposed Cuomo administration lawsuit. “I imagine the strategy would be to argue about an infringement on states’ rights of some sort.”

Far and away the biggest complaint that Americans have with the tax system, poll after poll finds, is that big corporations don’t pay their fair share. So it’s more than a little startling that the tax bill Republicans are about to pass would not only slash the corporate tax rate across the board but also add a big incentive for companies to stash money overseas...Other analyses, like this one by Harvard Law School’s Thomas Brennan, are more optimistic, but even Brennan concludes that the largest corporations only used 12 percent of the money they brought back on research and development or new investment. The rest went to buying up other companies and reducing debt (both allowed under the law) and paying back shareholders through stock buybacks and dividends (not allowed).

Since Donald Trump’s victory in the 2016 presidential election, Harvard affiliates have voiced concerns about his stances on a number of issues, including immigration, federal research funding, and climate change. But some alumni and tax experts say that Trump’s administration could affect another important—if less public—aspect of University affairs: charitable giving...Harvard Law School professor Thomas J. Brennan, who teaches tax law, said he thinks the proposed changes could affect high income individuals, but not the “Warren Buffetts and Bill Gates” of the world. “The people who are itemizing—aren’t extremely wealthy but are well enough off and generous—are the ones whose behavior will be most affected,” Brennan said.

In response to requests by Congressional leaders to increase the degree of federal oversight for large university endowments, Harvard has indicated it will work with Congress to provide more clarity and information regarding the use of its endowment resources. ...Harvard Law School professor Thomas J. Brennan, a taxation expert, said that Congress has the power to reclassify these large universities as private foundations instead of public charities. This reclassification, according to Brennan, would enable Congress to enforce expenditure requirements, which are applied to private non-profit organizations like the Gates Foundation. Public charities are not required to use a particular amount of their funds each year. “Expanding taxation to private university endowments could lead to dangerous slippery slope. If endowments can be taxed, what about pension funds?” Brennan said.

A host of new faculty members arrived at Harvard Law School this academic year, and over the summer, Dean Martha Minow announced two new faculty who will join HLS in 2015.